Appendix — Martin Bros. Box Co. v. Interstate Commerce Commission

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38 Appendix

one of plaintiff's employees generally visited defendant's

office at Oakland both in the morning and afternoon of

each day. While there, he often called the defendant's

office at Eugene with respect to the assignment of cars.

The defendant's agent at Oakland admitted that he |

knew plaintiff desired additional cars and that, in re-

sponse to the latter’s requests, he attempted to obtain

them through various officials of the defendant.

Plaintiff had orders that were sufficient for opera-

tion of the Oakland plant at capacity during the com-

plaint period. It usually operated only one shift. For

short periods of time, the plaintiff was required to cease

its operations. Plaintiff gave some of its orders to an-

other manuafcturer of boxes and a few orders were

delivered by truck. Due to plaintiff's inability to fill

orders when needed, many orders were cancelled.

As a result of the inability to obtain lumber from

Oakland, the operations of the Toledo, Ohio, plant was

curtailed. The Toledo plant was operated with two shifts

until March 18, 1947, and with one shift thereafter.

About 65 carloads of lumber a month were required to

keep each shift running. Most of the lumber was pur-

chased in the open market, but plaintiff was unable to

purchase enough in the open market to satisfy the needs

of the Toledo plant.

The cars shipped from Oakland to Toledo during the

complaint period were as follows:

January 32 June 6

February 47 July 2

e

March 27 August 6

April 10 September _ Non

May 12

Appendix 39

Including the cars shipped to Toledo, plaintiff re-

ceived a total of 593' cars during the complaint period.

January 98 June 63

February 78 July 62

March 87 August nates 58

| April 40 September 58

May 54

The testimony of W. F. Forrest, “‘a person of con-

siderable transportation experience,’ who was employed

by plaintiff “to make a survey of the other shippers on

the defendant’s lines concerning their orders and de-

liveries during the period covered by the complaint,”

was reviewed. Mr. Forrest traveled 7,752 miles and

interviewed the traffic presonnel of many shippers at

numerous points on the defendant’s lines. “He claims

to have found evidence of delay in filling car orders

only at non-competitive points.”” He also made a study

of defendant’s records of plaintiff's written car orders

for the whole complaint period and of six other shippers,

three of whom were located in Eugene, two in Portland,

and one in Salem, for the months of July, August and

September, 1947. Solely on the basis of these written

car orders, he found that plaintiff promptly received al!

of the cars which it ordered up to July 1, and that

during the remaining three months, plaintiff, but not

the other six shippers, encountered a_ considerable

amount of delay in receiving cars.

Mr. Forrest further testified that Timber Structures,

Inc., a large Portland lumber company, for whom he

'In this opinion, as in the Commission’s opinion, the number

of cars furnished was adjusted to reflect the regulations of a

service order of the Commission which permitted the use of two

or three refrigerator cars in place of one boxcar, depending upon

- size of the boxcar ordered. The 593 cars were delivered as

ollows:

—_— mens NERD NE RNS HON TELNET

RR Rae MRI I PO A ty FQ

40 Appendix

acted as traffic manager, ‘‘ordered its cars by phone and

experienced no difficulty in obtaining cars from the de-

fendant during 1947.”

There was also introduced in evidence an

“excerpt from a transcript taken for this Commis-

sion on April 30, 1947, at a hearing on an appli-

cation for a water carrier for additional operating

authority. The excerpt submitted consisted of testi-

mony by a representative of the defendant who

claimed that it was at that time experiencing no

shortage of cars.”

The defenses interposed by the defendant were de-

scribed as follows:

“The defendant states that its ability to supply cars

in 1947 was adversely affected by unusual, un-

avoidable and unforeseeable conditions resulting

from World War II; that at all times during the com-

plaint period it distributed cars to the complainant

on a reasonable basis; and that during the com-

plaint period it actually delivered to the complain-

ant more cars than were specifically ordered.”

With reference to the defendant’s contention that it

could not anticipate the unusual demand for cars that

arose in 1947, the Commission recited a number of

facts on the basis of which it found:

“On these facts the defendant cannot be held ac-

countable for general car shortages on its lines with-

in the period covered by this complaint.”’

With reference to the defendant’s next contention,

the Commission stated:

“In support of its contention that cars were

distributed to the complainant on a_ reasonable

basis, the defendant showed that during the period

concerned the complainant received more cars than

it requested by written car orders, whereas other

shippers on its lines, including the Portland divi-

OGRE ORGIES AIS AED LOPE RIT FID CONES PT

Appenc'ix 41

sion, were furnished on the average only 80 per cent

of the cars ordered by them. From January 1 to

June 30, 1947, cars were furnished to the complain-

ant in practically complete compliance with written

car orders, and in the remainder of the period more

cars than ordered were furnished, but some delay

was encountered. In the latter period, the distribu-

tion of cars to shippers on the Portland division,

including the complainant, was made on a per-

centage-of-quota basis; that is, if the available car

supply on a particular day was only 50 per cent

of the aggregate capacity of the district, each ship-

per was assigned only 50 per cent of its quota, ex-

cept that no cars would be assigned to a shipper

which had no orders on file. During the first six

months of the complaint period, the car shortage

was not as severe as during the later period; but

some shortage did exist, and cars were allegedly dis-

tributed to each shipper in proportion to the num-

ber of empty cars available.”

The Commission described the method by which the

plaintiff gave orders for cars to the defendant’s local

agent at Oakland, and then stated:

“Under normal conditions it is the practice for

shippers to order the specific number of cars

wanted and, therefore, the defendant insists that

inasmuch as the complainant received more cars

than were specifically ordered, it has no legitimate

reason to complain that the distribution of cars

made was other than reasonable. The complainant

indicated generally that it wanted more cars than

were furnished and this is admitted by the Oakland

agent of the defendant. It appears that the written

car order blanks, which were filled out and given

to the defendant’s agent after the complainant knew

what cars had been assigned to it for the particular

day, were to a large extent nothing more than a

written confirmation, for the defendant's records,

that the complainant wanted the cars that had been

assigned to it for that day.”

PON DARTS, LPS YY RN

DEP Ae NT PEE I VETS Ce Rg

ea

42 Appendix

The Commission reviewed the evidence on the claim

of the defendant that « number of cars were kept by

plaintiff on its siding frcm 3 to 7 working days during

the complaint period. This evidence was introduced to

rebut plaintiff's contention that is was not furnished all

the cars which it needed. The Commission concluded

its discussion by stating:

“Under emergency conditions such as exist dur-

ing a period of car shortage, a carrier may be justi-

fied in refusing cars to a shipper negligently with-

holding from sh’ >ment cars previously furnished to

it. While there is no indication that the defendant's

car service practices with respect to the complainant

were affected by the holding referred to of cars by

the complainant, such holding is relevant in a gon-

sideration of the complainant’s ability to load cars

in addition to those which were furnished.”

The Commission then referred to the testimony of

the defendant that plaintiff was not in competition with

shippers at terminal points and that

“conditions and circumstances affecting the prompt-

ness of car supply at terminals are such as neces-

sarily give shippers there located a natural advan-

tage over shippers at nonterminal points.”’

This testimony was offered to rebut plaintiff’s evidence

that shippers at terminal points received better service.

Finally, the Commission reviewed plaintiff's evi-

dence on its claina for damages against the defendant.

Under the heading, “Conclusion,” the Commission

stated:

“The evidence establishes that from January 1

to June 30, 1947, complainant received practically

all of the cars for which specific written car orders

were placed; that thereafter in the complaint period

| Appendix 43

more cars were furnished than were requested Ly

written orders, though some delays were exper-

ienced; that complainant desired, required, and at-

tempted to secure additional cars from defendant:

that defendant and its employees made reasonable,

and sometimes successful, efforts to furnish addi-

tional cars to complainant; that by reason of its

inability to secure cars at all times when needed

complainant was unable to fill some orders placed

with it; that during 1947 defendant suffered a daily

shortage of 583 freight cars; that such shortage was

a general one for which no direct responsibility can

be placed upon defendant; and that it is not shown

tha: defendant unduly favored shippers other than

complainant.

“Complainant alleges violations of Section 1

(4), Section 1 (11) and Section 3 (1) of the Inter-

state Commerce Act. Under those sections defen-

dant is required, in part, to provide and furnish

transportation upon reasonable request; to furnish

safe and adequate car service and to establish, ob-

serve, and enforce just and reasonable rules, regu-

lations, and practices with respect to car service;

and not to make, give, or cause any undue or un-

reasonable preference or advantage to any parti-

cular person, company, locality, or territory. The

right of a shipper to cars, however, it not an abso-

lute right and the carrier is not liable if its failure

to furnish cars was the result of sudden and great

demands which it had no reason to apprehend

would be made and which it could not reasonably

have been expected to meet in full. The law exacts

only what is reasonable from such carriers but, at

the same time, requires that they should be equally

reasonable in the treatment of their patrons. In

case of car shortage occasioned by unexpected de-

mands, they are bound te treat shippers fairly, if

not identically. Pennsylvania R. Co. vs. Puritan

Coal Mining Co., 237 U.S. 121 and Midland Valley

R. Co. vs. Barkley, 276 U.S. 482. Considering the

above, in the light of the facts of this record, we

= PONTING ae 7 oe CLANS

SIRT IE AEE

44 Appendix

conclude that complainant has failed to establish

any violation of sections 1 and 3 as alleged. More-

over, the evidence presented falls far short of the

requirements in a proceeding of this character to

support an award or reparation. Where special dam-

ages are sought, the proof thereof must be as defi-

nite and certain as would be necessary under estab-

lished principles of law to support a judgment in

court. Lignum-Vitae Products Corp. vs. Alabama

G.S.R. Co., 268 I.C.C. 599, 608.

“We find that complainant has failed to estab-

lish that defendant during the complaint period

engaged in any unreasonable or otherwise unlawful

practice, as alleged, in violation of section 1 of the

Act in furnishing or not furnishing cars to com-

plainant at Oakland, Oreg., or that defendant sub-

jected complainant to any undue prejudice in

violation of section 3. The complaint will be

dismissed.”

Except for the findings of the Commission above

quoted under the heading, “Conclusions,” the statement

of the evidence and the findings of the Examiner were

practically identical to those of the commission. The

Examiner recommended an award of reparations and

the Commission dismissed plaintiff's complaint.

I previously indicated that the court is charged with

the duty of determining whether there is a rational basis

for the Commission’s conclusions. Or, stated differently,

whether the Commission’s conclusions are supported by

substantial evidence, considering the whole record, and

whether, in arriving at those conclusions, it correctly

applied the applicable law.

In my opinion, the statement set forth in the second

paragraph of the conclusions correctly set forth the rules

of law relative to the distribution of cars by a railroad.

Appendix 45

A railroad, under §1(4), §1(11) and §3(1) of the Act

is required:

1. To furnish transportation upon reasonable re-

quest.

2. To establish and enforce reasonable rules with

respect to car service. ;

3. To refrain from causing any undue influence or

unreasonable preference or advantage to any particular

person, company, locality, or territory.

4. To treat shippers fairly, if not identically, in case

of a car shortage.

There remains the question of whether the other

conclusions are supported by substantial evidence and

are not contrary to law. I will consider each statement

in the Commission’s conclusions separately

I

“The evidence establishes that, from January 1

to June 30, 1947, complainant received practically

all of the cars for which specific written car orders

were placed; that thereafter in the complaint period

more cars were furnished than were requested by

written orders, though some delays were exper-

ienced.”’

This statement was based upon the testimony of

W. F. Forest, plaintiff's expert, whose testimony was

admittedly based upon exhibit 8, which he prepared

solely from the written car orders taken from the de-

fendant’s files. This statement is relevant only if plain-

tiff was required to show, as a condition precedent to its

right to cars, that it either placed specific written car

orders or specific oral car orders for the cars that it

desired.

POSS RIP OED AON OEE LLL PA IS AEM BR TE

46 Appendix

Although the Commission, in such statement re-

ferred solely to written car orders, it is relevant to de-

termine whether plaintiff was required to place car

orders for a particular number of cars, of a particular

type, for delivery to plaintiff on specified days, before

the Commission can find that the defendant failed to

furnish freight cars upon the “reasonable request’ of

plaintiff.

The findings of the Commission, heretofore sum-

marized, and the evidence upon which such findings

are based, show the continuous requests of plaintiff to

secure additional box cars to partially satisfy its urgent

need for such cars.

In spite of defendant’s knowledge of the needs of

plaintiff and its almost daily requests for such cars, de-

fendant contends that such requests do not meet the

requirements of specificity demanded by the Act.

In support of this contention, defendant cites:

1. Victor-American Fuel Co. vs. Denver & Salt

Lake Railroad Co., 115 I.C.C. 169. (1926.)

2. Winters vs. Chicago-Milwaukee Railroad Co.,

87 I1.C.C. 113. (1923.)

3. DiGiorgio Importing Co. vs. Pennsylvania Rail-

road Company, (Md., 1906), 65 Atl. 425.

4. Koepp vs. New Orleans Great Northern Rail-

road Co., (La., 1926), 110 So. 729.

5. Simmons vs. Seaboard Airline Railroad Co.,

(Ga., 1909), 66 S. E. 783.

6. 13 Corpus Juris Secundum §37, page 74.

7. 90 American Jurisprudence 630.

The Victor-American and the Winters cases, both of

which are Commission decisions, do not even remotely

involve the problem before us.

RBA eA LN I ice te Re oR Ree RTS ED SSSA IAN SE ag PERRO UO,

Appendix 47

In the DiGiorgio case, plaintiff, a shipper, brought

an action against the railroad in the state court for

breach of its common law duty to furnish cars. Plaintiff

had ordered a specific number of refrigerator cars to

ship four boatloads of bananas consigned to it from

Jamaica and Cuba. The requisition designated the date

of the arrival of the first ship, but did not designate the

arrival date of the other three ships. The first ship and

one other arrived on the same day and sufficient cars

were supplied by the defendant. A few days later, two

other ships arrived and the defendant failed to provide a

sufficient number of cars to remove the entire cargo.

The defendant proved that it had no notice from plain-

tiff or from any other source, of the approach or ex-

pected arrival of the two later ships and a judgment in

favor of the defendant was therefore affirmed.

Both the Koepp and the Simmons cases were also

actions in state courts under state laws. They involved

specific written car orders, but in both cases the carrier

was not informed, and had no knowledge, of the type or

types of cars required by the shipper. The court in each

case found that the shipper required different types of

cars for the commodities it manufactured. In the case

at bar, the Southern Pacific knew that plaintiff wanted

box cars. In fact,’ Southern Pacific complained that

plaintiff always wanted box cars, the type of freight

car in greatest demand.

These three state court cases, as well as three other

cases are cited in the Corpus Juris Secundum reference

to support the text which lays down the requirements of

specificity as to the number and character of the cars

desired and the time such cars are to be furnished. The

other three cases are:

PSR TITS GNA NN ENR RNR ETS LI 6 SOUT EROS IST? ENR IE

4% ) Appendix

1. Weida vs. Chicago Railroad Co., (Minn., 1898),

75 N. W. 121.

2. Central of Georgia Railroad Co. vs. Rabun,

(Ga., 1917), 94 S. E. 598.

3. Stratton vs. Acheson, Topeka & Santa Fe,

(Kan., 1925), 236 Pac. 831.

The Weida case involved an interpretation of writ-

ten car orders placed by a shipper located on a narrow

gauge track. He successfully contented that, in ac-

cordance with the usual practice, he was entitled to

twice the number of cars ordered for the 14-mile trip

over the narrow gauge road.

In the Rabun case, plaintiff relied on three written

car orders. A judgment in favor of plaintiff was re-

versed because plaintiff was merely an agent for the

shipper and the court held an agent was not entitled to

recover a statutory penalty.

The Stratton case involved an action for statutory

damages under a state law for the failure to furnish two

cars. From a verdict in favor of the plaintiff, the rail-

road appealed because a state public utility commission

regulation required that car orders be in writing and

contain information as to the number and type of cars

wanted and, in the case of a wheat shipper, the quantity

of wheat on hand. Plaintiff, a wheat shipper, had failed

to state the quantity of wheat on hand in its order for

one of the cars and therefore the judgment of the trial

court was reversed as to such car.

None of the cases upon which defendant relies sup-

port its contention that plaintiff's request for cars were

insufficient because of lack of specificity or that such

requests were not reasonable requests within the mean-

ing of the Act.

ni Tel ea TE My: eS Se ee ee ae ES MISTS

Appendix 49

In my opinion, the portion of the Commission’s con-

clusions relative to written car orders has no bearing on

any issue of this case and, if the Commission did premise

its dismissal of plaintiff's complaint on this portion of its

conclusions, then it is erroneous as being contrary to

law.

I.

“complainant desired, required and attempted to

secure additional cars from the defendant;”

The findings of the Commission heretofore summar-

ized relative to the attempts of plaintiff to secure addi-

tional freight cars are supported by substantial evidence

and form an adequate basis for this conclusion of the

Commission.

III.

“defendant and its employees made reasonable, and

sometimes successful, efforts to furnish additional

cars to complainant;”

The only evidence to support this conclusion is sum-

marized in the findings of the Commission.

One of plaintiff's Los Angeles salesmen, who had

been instructed to refrain from taking further orders,

came to Oakland where:

“He spent 14%4 months in Oakland during the

fall of 1946 and 3 months during the spring of 1947,

during which time he exerted all his efforts to ob-

taining more cars. He made daily telephone calls

each morning before 7:45 a.m., to the office of the

defendant’s local freight agent at Roseburg, Ore.,

and went over the switch list of the defendant’s

employees to ascertain how many cars, if any, were

to be spotted at the complainant’s plant that day.

On days when no cars were assigned, he on several

occasions induced the defendant’s employees to re-

50 Appendix

consider and assign a car for the complainant's

plant.” (Emphasis added.)

This salesman was told that plaintiff's quota was

only 5 cars a day, the same as they assigned to the

former owner of the Oakland mill.

“He was later told ti: t the quota would be

changed to 10 cars a day, but that because of the

car shortage there was doubt that the complainant

could be given more than 50 per cent of its

quota. * * *

“The defendant’s agent at Oakland admitted

that he knew complainant desired additional cars

and that in response to latter’s requests, he

attempted to obtain them for the complainant

through various other officials of the defendant.”’

The other findings of the Commission summarized

in this opinion relative to the requirements of the plain-

tiff, the number of cars which it received, its efforts to

secure additional cars, and the number of cars which

other shippers on the Portland Division received during

the same period, show that there was no substantial evi-

dence to support the Commission’s conclusion that de-

fendant “‘made reasonable and sometimes successful ef-

forts to secure additional cars for the complainant.” A

“reasonable effort” implies conduct in accordance with

the defendant’s statutory duty not to prefer “any par-

ticular person, company, locality, or territory,”’ and like-

wise its statutory duty in case of a car shortage to

“treat shippers fairly, if not identically.”

IV.

“by reason of its inability to secure cars at all times

when needed complainant was unable to fill some

orders placed with it;”’

PAT oe OA SF wihey f SF PLT Re GERI TE LTT aI Pa a

Appendix 51

The findings of the Commission and the evidence

upon which such findings were based amply support

this conclusion.

. i

“during 1947 the defendant suffered a daily short-

age of 583 freight cars; that such shortage was a

general one for which no direct responsibilty can be

placed upon the defendant;”

Here again, the findings of the Commission and the

evidence upon which they were based amply support this

conclusion.

However, it should be noted that the car shortage

was not uniform throughout the entire complaint period.

During the months of January and May, and during

the first part of June, there was little, if any, shortage

of box cars on the Portland Division. During the bal-

ance of the period, there were car shortages which varied

in intensity. In August and September, the car shortage

was most severe.

VI.

“it is not shown that the defendant unduly favored

shippers other than complainant.”

The Commission found that other shippers on the

Portland Division during the cumplaint period were

furnished on an average of 80' per cent of the cars

ordered by them. This includes the period beginning

July 1, 1947, to September 30, 1947, when the car

shortage was more severe and during which period the

Southern Pacific adopted and placed in effect a car dis-

'This figure is an average of box cars, flats and gondolas. The

average for each type of car is: box cars—76%; flats—85% and

gondolas—78%.

RRR Bie LL LL NTRG. SORE NY ERE EMI A ETA A Sana BPA MINE eermetrgie

Lilo chatig tatis

Pty Sates

52 Appendix

tribution rule based upon the “production capacity” of

its shippers. It is contended that such rule operated to

give each shipper its proportionate share of the total

cars available.

The witness for defendant who explained the opera-

tion of the rule qualified it by stating, ““We would take

into consideration the car orders that were filed by the

mill.”

I have previously held that the written car orders

placed by plaintiff with the defendant were no indica-

tion of the number of cars required, needed, or re-

quested by the plaintiff and that the plaintiff made

reasonable requests within the meaning of the Act for

all of the freight cars which it required.

The Commission found that, during the complaint

period, plaintiff had orders for and could have operated

at capacity except for the lack of freight cars; that the

plaintiff required 13 freight cars a day to operate at

capacity. The Commission also reierred to the testi-

mony of one of plaintiff's witnesses who testified that

the quota of plaintiff was only 5 cars a day, the same

that had been assigned to the former owner who only

operated a lumber mill and had no box manufacturing

facilities, but that plaintiff's quota would be raised to

10 cars a day.

In view of the productive capacity of plaintiff's lum-

ber and box manufacturing plants at Oakland and the

information concerning such operations which were

communicated to defendant and of which defendant had

personal knowledge, plaintiff was entitled to a quota in

excess of 5 cars a day. However, even on the basis of

only 5 cars a day, the evidence showed that plaintiff did

—,

Appendix 53

not receive it proportionate share of the freight cars as

compared to the freight cars received by other shippers.

Plaintiff received an adjusted total of 593 cars during

the complaint period or an average of 3.1 cars for each

working day. The Commission, in its findings, referred

to the testimony of Mr. Forrest, heretofore summarized,

who, as a result of his extensive investigations, “claims

to have found evidence of delay in filling car orders only

at non-competitive points.”’ It also referred to his testi-

mony that Timber Structures, Inc., for whom he acted as

traffic manager, “ordered its cars by phone and exper-

ienced no difficulty in obtaining cars from defendant

during 1947.” This testimony was uncontradicted and,

in my opinion, is corroborated by the defendant’s own

evidence.

Defendant’s Exhibit 29, is entitled, “Freight Car

Shortage—January 1—September 30, 1947, inclusive, Na-

tionally and S. P. Pacific Lines.”

Defendant’s Exhibit 31 is entitled “Daily Average

Cars Ordered and Furnished Portland Division and

Pacific Lines 12/29/46 to 10/4/47.”

These exhibits show that, even during the periods in

which there was little or no shortage of box cars on the

Portland Division of the defendant, plaintiff received

only a small proportion of the cars which it required.

January

Exhibit 29: During the month of January, there was

no shortage of box cars on defendant’s lines.

Exhibit 31: 83 per cent of the box cars ordered were

furnished.

Plaintiff received 89 box cars and 12 other cars or

an adjusted total of 98 cars.

54 Appendix

April

Exhibit 29: There was a slight box car shortage for

the week ended April 19, and no shortage for the weeks

ended April 26 and May 3.

Exhibit 31: From the week ended April 4 to the

week ended May 3, 92 per cent of the box cars ordered

were furnished.

Plaintiff received 40 box cars.

May

Exhibit 29: No shortage of box cars for the month

of May.

Exhibit 31: From the week ended May 10 to the

week ended May 31, all box cars ordered were furnished.

Plaintiff received 54 cars, one of which was a flat

car.

June

Exhibit 29: For the weeks ended June 7 and June 4,

there was no shortage. For the week of June 21, there

was a slight shortage and for the week ended June 28,

a moderate shortage.

Exhibit 31: From the week ended June 1 to the

week ended July 5, 97 per cent of the box cars ordered

were furnished.

Plaintiff received 73 cars, 16 of which were refriger-

ator cars or an adjusted total of 63 cars

The Commission may also have relied on the fact

that plaintiff was not in competition with any shipper

at terminal points where “conditions and circumstances

affecting the promptness of cars supplied at terminal

points are such as necesarily give shippers there located

PEARED EET NEES DEGENERES RI EOE ES sant _—

a :

Appendix 55

a natural advantage ower shippers at monterminal

points.”

I would have regarded this statement of the Com-

mission merely as a comment on a contention of the

defendant, except for the fact that the Commission’s at-

torneys, on page 32 of their brief filed in this court,

found some connection between such statement and the

Commission’s conclusions: that no competitor of plaintiff

was unduly preferred.

Nothing in the Act and no decision that I have been

able to find permits discrimination as between shippers

merely because they are not in the same type of busi-

ness and therefore do not compete against each other.

The natural advantage of being at a terminal point

may on occasions result in more rapid service and slight

difference in the cars made available to such shipper but

it can not justify the wide disparity of cars shown by

the evidence in this case to have been delivered to ship-

| pers at terminal points over a shipper at a nonterminal

—- point.

| Considering the whole record, I am of the opinion

that there is no substantial evidence upon which the

Commission could have concluded that the “defendant

did not unduly favor shippers other than the com-

plainant.”

VII.

“Considering the above, in the light of the facts

of this record, we conclude that complainant has

failed to establish any violation of sections 1 and 3

as alleged. * * *

“We find that the complainant has failed to estab-

lish that defendant during the complaint period

engaged in any unreasonable or otherwise unlawful

RETA WE AIP NS AR CAD TUE HNRSRMO RY TNR EAM | TE WER et aR

SMR

56 Appendix

practice, as alleged, in violation of section 1 of the

Act, in furnishing or not furnishing cars to com-

plainant at Oakland, Oreg., or that defendant sub-

jected complainant to any undue prejudice in vio-

lation of section 3. The complaint will be dis-

missed.”

If this ultimate conclusion refers solely to the pre-

ceeding conclusions of the Commission, such ultimate

conclusion is not supported by substantial evidence and

is contrary to law. However, the Commission’s state-

ment, “Considering the above in the light of the facts

of this record,” requires an examination of the evidence

adduced at the hearing and particularly the Commis-

sion’s other findings, to determine whether such evidence

or findings afford a rational basis for the Commission's

ultimate conclusion.

The only other evidence and the only other finding

relied upon by the defendant to support the Commis-

sion’s ultimate conciusion relate to the length of time

plaintiff retained freight cars on its siding.

The Commission, on page 402 of its opinion, stated:

“In a further effort to support its contention

that the complainant has no legitimate complaint

that the distribution of cars made was other than

reasonable, and to rebut the evidence that the com-

plainant was not furnished all the cars needed by it,

the defendant shows that a number of cars were

kept on hand on the complainant’s siding for sev-

eral days during much of the complaint period.

Most of the cars placed on the complainant’s siding

during the period under consideration were on hand

when the 7 a.m. track check was made on only 1

or 2 days. One car was on hand 7 days, 2 cars were

on hand 6 days, 11 cars were on hand on 5 days,

22 cars were on hand on 4 days, and 56 cars were

on hand on 3 days. The complainant indicates that

SRR ILE LPR TS NE NE ETE IEP BILE FET III TINE HE ET BN HG LTR SE ECL NN

Appendix 57

these may have been cars that were restricted for

loading to particular destination areas for which it

had no immediate traffic available. During this

period the destination of certain cars was restricted

by orders of the Car Service Division of the Asso-

ciation of American Railroads. Automobile cars

were required to be moved back to automobile pro-

duction territory, certain gondola cars were re-

quired to be moved back to eastern Allegheny ter-

ritory and to points served by the Denver and Rio

Grande Western Railroad Company, and certain

other cars owned by Canadian roads had to be

moved back to Canada.

“Under emergency conditions such as exist dur-

ing a period of car shortage, a carrier may be

justified in refusing cars to a shipper negligently

withholding from shipment cars previously fur-

nished to it. While there is no indication that the de-

fendant’s car service practices with respect to the

complainant were affected by the holding referred

to of cars by the complainant, such holding is rele-

vant in a consideration of the complainant’s ability

to load cars in addition to those which were

furnished.”

In view of its other findings, the Commission ap-

parently did not consider the evidence as significant or

relevant except in connection with “a consideration of

the complainant’s ability to load cars in addition to

those which were furnished,” as to which there was no

issue. Defendant did not contend and no evidence was

introduced to show that plaintiff, at any time during

the complaint period lacked the necessary facilities or

) the personnel to promptly load all of the freight cars

necessary to satisfy its requirements.

In my opinion the Commission did not intend to

support its conclusions by the statements or findings

hereinbefor. set forth. In addition, an examination of

Exhibit 42, upon which such statements or findings

EGS IRF PLINER EA, SRD AS ETRE Sr AE ORO RE

58 Appendix

were based, when considered in the light of the other

evidence, reveals its lack of any probative value.

1. Some of the entries in Exhibit 42 are incon-

sistent with the defendant’s Exhibit 40, which latter ex-

hibit shows the cars furnished plaintiff.

2. A great majority of the cars were moved out

within 2 days.

3. When a car was held for more than 3 days, from

13 to 23 other cars were moved in, loaded, and moved

out within such period.

4. Of the 664 cars' furnished during the complaint

period, only 36 were found to be on plaintiff's siding

for more than 3 days, when the daily 7 a.m. track check

was made.

5. During the months of August and September, 35

per cent and 60 per cent of all cars furnished plaintiff

were not box cars, but were refrigerator, stock, flat or

gondola cars. The same situation obtained, to a lesser

extent, in other months during the complaint period. A

number of these cars were of limited value to the plain-

tiff. The automobile and refrigerator cars were restricted

to particular destinations and the refrigerator cars could

only be used for the shipment of boxes and they could

only be loaded by hand.

It is apparent therefore that the statements of the

Commission relative to the length of time cars were

retained on plaintiff's siding do not support the Com-

mission’s conclusions.

VIII.

“Moreover, the evidence presented falls far short

of the requirements in a proceeding of this char-

'The 593 figure heretofore used in this opinion is the adjusted

figure. For explanation see note on page 6 of this opinion.

Lape.

wee

oY APTA STAI PML DIE OM ETE TE RL IL ETTYPCRTE NTN OM I ath AMIE RE Gh ELS

Appendix 59

acter to support an award of reparation. Where

special damages are sought, the proof thereof must

be as definite and certain as would be necessary

under established principles of law to support a

judgment in count. Lignam-Vitae Products Corp.,

v. Alabama G.S.R. Co., 268 I.C.C., 599, 608.”

Plaintiff admits that several of the items of damage

which it originally claimed were not properly charge-

able to the defendant and that other items were so in-

definite and speculative as to offer no reasonable basis

for an award of damages. All of such items were pro-

perly disallowed by the examiner. However, the record

does contain evidence of damage as to other claims

which will support an award of reparations. A railroad

which has violated its statutory duty and has caused a

shipper to suffer damage will not be permitted to. es-

cape liability solely because the shipper is unable to

prove the exact amount of damage suffered. Midland

Valley R. Co., vs. Excelsior Coal Co., 86 F. 2d 177, 183,

(8 Cir. 1936).

I am in complete accord with the rule that the con-

clusions of the Commission shall not be overturned

except in the rare instances in which there is no rational

basis for such conclusions. When a court finds it neces-

sary to overrule a decision of such expert administrative

tribunal, I believe that it should set forth in detail the

reasons which impel such action. That is my only justi-

fication for such a long opinion.

For the reasons heretofore set forth, plaintiff is en-

titled to a judgment remanding this matter to the Com-

mission for further proceedings in conformity with this

opinion.

[Endorsed]: Filed August 25, 1953.

Appendix

APPENDIX B

RELEVANT PORTIONS OF THE INTERSTATE

COMMERCE ACT

Section 1 (1) (49 U.S.C.A. § 1). The provisions of

this chapter shall apply to common carriers engaged

in—

(a) The transportation of passengers or property

wholly by railroad, or partly by railroad and partly by

water when both are used under a common control,

management, or arrangement for a continuous carriage

or shipment; or...

(4) It shall be the duty of every common carrier

subject to this chapter engaged in the transportation of

passengers or property to provide and furnish such

transportation upon reasonable request therefor, and to

establish through routes and just and reasonable rates,

fares, and charges applicable thereto, and to provide

reasonable facilities for operating through routes and to

make reasonable rules and regulations with respect to

the operation of through routes, and providing for rea-

sonable compensation to those entitled thereto; and in

case of joint rates, fares, or charges, to establish just,

reasonable, and equitable divisions thereof as between

the carriers subject to this chapter participating therein

which shall not unduly prefer or prejudice any of such

participating carriers.

(11) It shall be the duty of every carrier by rail-

road subject to this chapter to furnish safe and ade-

quate car service and to establish, observe, and enforce

just and reasonable rules, regulations, and practices with

respect to car service; and every unjust and unreason-

62 Appendix

able rule, regulation, and practice with respect to car

service is prohibited and declared to be unlawful.

Section 3 (1) (49 U.S.C.A. § 3). It shall be unlawful

for any common carrier subject to the provisions of

this chapter to make, give, or cause any undue or un-

reasonable preference or advantage to any particular

person, company, firm, corporation, association, locality,

port, port district, gateway, transit point, region, dist-

rict, territory, or any particular description of traffic,

in any respect whatsoever; or to subject any particular

person, company, firm, corporation, association, local-

ity, port, port district, gateway, transit point, region,

district, territory, or any particular description of traffic

to any undue or unreasonable prejudice or disadvantage

in any respect whatsoever: Provided, however, That

this paragraph shall not be construed to apply to dis-

crimination, prejudice, or disadvantage to the traffic of

any other carrier of whatever description.

Section 9 (49 U.S.C.A. § 9). Any person or persons

claiming to be damaged by any common carrier subject

to the provisions of this chapter may either make com-

plaint to the commission as hereinafter provided for, or

may bring suit in his or their own behalf for the re-

covery of the damages for which such common carrier

may be liable under the provisions of this chapter, in

any district court of the United States of competent

jurisdiction; but such person or persons shall not have

the right to pursue both of said remedies, and must in

each case elect which one of the two methods of pro-

cedure herein provided for he or they will adopt. In any

such action brought for the recovery of damages the

court before which the same shall be pending may com-

pel any director, officer, receiver, trustee, or agent of the

Es REAR LT LSC SCR a PA ime ND Ca a Rae ET aT a PRRs eens IONS RE Ao — eae

Appendix 63

corporation or campany defendant in such suit to at-

tend, appear, and testify in such case, and may compel

the production of the books and papers of such corpora-

tion or company party to any such suit; the claim that

any such testimony or evidence may tend to criminate

the person giving such evidence shall not excuse such

witness from testifying, but such evidence or testimony

shall not be used against such person on the trial of any

criminal proceedings.

Section 17 (9) (49 U.S.C.A. §17). When an appli-

cation for rehearing, reargument, or reconsideration of

any decision, order, or requirement of a division, an

individual Commissioner, or a board with respect to any

matter assigned or referred to him or it shall have been

made and shall have been denied, or after rehearing, re-

argument, or reconsideration otherwise disposed of, by

the Commission or an appellate division, a suit to en-

force, enjoin, suspend, or set aside such decision, order,

or requirement, in whole or in part, may be brought

in a court of the United States under those provisions

of law applicable in the case of suits to enforce, enjoin,

suspend, or set aside orders of the Commission, but not

otherwise.

Administrative Procedure Act of 1946

5 U.S.C.A. § 1009 (e)

So far as necessary to decision and where presented the

reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions,

and determine the meaning or applicability of the terms

of any agency action. It shall (A) compel agency action

unlawfully withheld or unreasonably delayed; and

(B) hold unlawful and set aside agency action, findings,

<I SEY ORL

64 Appendix

and conclusions found to be (1) arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law; (2) contrary to constitutional right, power,

privilege, or immunity; (3) in excess of statutory juris-

diction, authority, or limitations, or short of statutory

right; (4) without observance of procedure required by

law; (5) unsupported by substantial evidence in any

case subject to the requirements of sections 1006 and

1007 of this title or otherwise reviewed on the record

of an agency hearing provided by statute; or (6) un-

warranted by the facts to the extent that the facts are

subject to trial de novo by the reviewing court. In

making the foregoing determinations the court shall re-

view the whole record or such portions thereof as may

be cited by any party, and due account shall be taken

of the rule of prejudicial error.

CERTIFICATE OF SERVICE

I hereby certify that I have this day served the fore-

going Petition upon counsel for respondents by mailing

by first class mail, postage fully prepaid, a copy thereof,

to each of the following: The Solicitor General of the

United States, Department of Justice, Washington 25,

D. C.; Edward M. Reidy, Interstate Commerce Commis-

sion, Washington 25, D. C.; and by mailing a copy there-

of, first class air mail, postage fully prepaid, to each of

the following: William L. Harrison, Interstate Commerce

Commission, 1056 Flood Building, San Francisco 2, Cali-

fornia; James E. Lyons and Charles W. Burkett, Jr., 65

Market Street, San Francisco 5, California; James C.

Dezendorf and George B. Campbell, 800 Pacific Building,

Portland 4, Oregon.

Dated at Washington, D. C., this JO™ day of May,

1955.

Georcr. L. QUINN, JR.,

Of Counsel for Petitioner,